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§153. It is not necessary, no, nor so much as convenient, that the legislative should be always in being; but absolutely necessary that the executive power should, because there is not always need of new laws to be made, but always need of execution of the laws that are made. When the legislative hath put the execution of the laws, they make, into other hands, they have a power still to resume it out of those hands, when they find cause, and to punish for any maladministration against the laws. The same holds also in regard of the federative power, that and the executive being both ministerial and subordinate to the legislative, which, as has been shewed, in a constituted common-wealth is the supreme. The legislative also in this case being supposed to consist of several persons, (for if it be a single person, it cannot but be always in being, and so will, as supreme, naturally have the supreme executive power, together with the legislative) may assemble, and exercise their legislature, at the times that either their original constitution, or their own adjournment, appoints, or when they please, if neither of these hath appointed any time, or there be no other way prescribed to convoke them: for the supreme power being placed in them by the people, it is always in them, and they may exercise it when they please, unless by their original constitution they are limited to certain seasons, or by an act of their supreme power they have adjourned to a certain time; and when that time comes, they have a right to assemble and act again.
§153. 没有必要，也不是那么方便，立法机构总是存在；但是执行权力绝对有必要，因为并不总是有新的法律需要制定，然而总是需要执行已经制定的法律。一旦立法权力将他们所制定法律的执行权力交给另一些人，如果他们找到理由仍然拥有权力收回，并惩罚任何违反法律的恶劣管理行为。在考虑外交权力的时候也是这样，外交权力与执行权力都是日常管理性的并从属于立法权力，立法权力，如已经说明的，在一个已建立的国家中是最高权力。在这种情况下，立法权力还应当被假定包括若干人，（因为如果是一个人，它就只能一直存在，随之而来的，最高立法权力就会将最高执行权力也攫取在自己手中）在最初的宪法所规定的时间，或他们休会时所指定的时间，或在任何他们想集会的时间——如果前两者都没有确定时间，或没有规定其它的召集办法的话——集会，行使他们的立法权力：因为立法权力既已由公民交给他们，它就一直在他们手中，他们可以在他们想行使的时候行使，除非根据最初的宪法他们只能在一定的有限的时期内行使，或者根据最高权力的法案他们需要休会一定的时间；休会结束时，他们又拥有权利可以集会和制定法律了。

WIND

§154. If the legislative, or any part of it, be made up of representatives chosen for that time by the people, which afterwards return into the ordinary state of subjects, and have no share in the legislature but upon a new choice, this power of chusing must also be exercised by the people, either at certain appointed seasons, or else when they are summoned to it; and in this latter case the power of convoking the legislative is ordinarily placed in the executive, and has one of these two limitations in respect of time: that either the original constitution requires their assembling and acting at certain intervals, and then the executive power does nothing but ministerially issue directions for their electing and assembling, according to due forms; or else it is left to his prudence to call them by new elections, when the occasions or exigencies of the public require the amendment of old, or making of new laws, or the redress or prevention of any inconveniencies, that lie on, or threaten the people.
§154. 如果立法权力或它的任何部分，由公民选举的代表组成，在需要立法的时候集会，法律制定之后仍回归臣民的普通状态，除非重新当选，不再成为立法机构的成员，选举的权力也必须由公民在一指定的时间或当他们被召集时行使；在后一种情况下，召集立法的权力通常交给执行权力，在时间上受以下二者限制：或由最初的宪法规定的每隔一段时间之后就集会并制定法律，执行权力仅仅例行公务发布依据正当的形式进行议员的选举和集会的指示；或当公共领域出现紧急情况，要求修订旧法律，或制定新法律，或矫正和预防任何存在和威胁公民的麻烦，这留给执行权力的审慎来决定，通过新的选举来召集议员。

§155. It may be demanded here, What if the executive power, being possessed of the force of the common-wealth, shall make use of that force to hinder the meeting and acting of the legislative, when the original constitution, or the public exigencies require it? I say, using force upon the people without authority, and contrary to the trust put in him that does so, is a state of war with the people, who have a right to reinstate their legislative in the exercise of their power: for having erected a legislative, with an intent they should exercise the power of making laws, either at certain set times, or when there is need of it, when they are hindered by any force from what is so necessary to the society, and wherein the safety and preservation of the people consists, the people have a right to remove it by force. In all states and conditions, the true remedy of force without authority, is to oppose force to it. The use of force without authority, always puts him that uses it into a state of war, as the aggressor, and renders him liable to be treated accordingly.
§155. 在此也许有人会质问：掌握国家强制力的执行权力，如果将这种力量用于阻碍立法权力根据最初的宪法或公共紧急要求的集会和立法，那怎么办？我的回答是：未经授权的对公民使用强制力，与交托他们的信任相背离，是向公民宣战的状态，公民便有权利恢复立法权力行使他们的权力：因为建立一种立法权力，其目的是他们应当行使制定法律的权力，不论是在已确定的时间，还是当社会需要而他们却受到任何强制力阻碍的时候，这时关系到公民的安全和自我保护，公民有权利通过强制力来清除它。在所有的情形中，未经授权的强制力的真正矫正办法，就是用强制力对抗它。未经授权的强制力的使用，总是将使用强制力的人置于战争状态，作为挑衅者，理所当然的必须把他当作挑衅者来对待。

WIND

§156. The power of assembling and dismissing the legislative, placed in the executive, gives not the executive a superiority over it, but is a fiduciary trust placed in him, for the safety of the people, in a case where the uncertainty and variableness of human affairs could not bear a steady fixed rule: for it not being possible, that the first framers of the government should, by any foresight, be so much masters of future events, as to be able to prefix so just periods of return and duration to the assemblies of the legislative, in all times to come, that might exactly answer all the exigencies of the commonwealth; the best remedy could be found for this defect, was to trust this to the prudence of one who was always to be present, and whose business it was to watch over the public good. Constant frequent meetings of the legislative, and long continuations of their assemblies, without necessary occasion, could not but be burdensome to the people, and must necessarily in time produce more dangerous inconveniencies, and yet the quick turn of affairs might be sometimes such as to need their present help: any delay of their convening might endanger the public; and sometimes too their business might be so great, that the limited time of their sitting might be too short for their work, and rob the public of that benefit which could be had only from their mature deliberation. What then could be done in this case to prevent the community from being exposed some time or other to eminent hazard, on one side or the other, by fixed intervals and periods, set to the meeting and acting of the legislative, but to intrust it to the prudence of some, who being present, and acquainted with the state of public affairs, might make use of this prerogative for the public good? and where else could this be so well placed as in his hands, who was intrusted with the execution of the laws for the same end? Thus supposing the regulation of times for the assembling and sitting of the legislative, not settled by the original constitution, it naturally fell into the hands of the executive, not as an arbitrary power depending on his good pleasure, but with this trust always to have it exercised only for the public weal, as the occurrences of times and change of affairs might require. Whether settled periods of their convening, or a liberty left to the prince for convoking the legislative, or perhaps a mixture of both, hath the least inconvenience attending it, it is not my business here to inquire, but only to shew, that though the executive power may have the prerogative of convoking and dissolving such conventions of the legislative, yet it is not thereby superior to it.
§156. 召集和解散立法机构的权力，虽然交给执行权力，却并未授与执行权力一种高于立法机构的权力，而是为了公民的安全将信任交托给他，在人类事物不确定和易变的情况下，是不适宜一套稳定固化的规则的：因为政府的最初创建者不可能通过任何预见而成为如此多的未来事件的主人，从而能够恰好预定立法机构集会的时间和期限，在所有的时间到来，又正好能够解决国家的所有紧急情况；对这种缺陷的最好的补救方法，是将这种情况交托给那个常在的人的审慎来决定，并且他的事务就是看管公共利益。毫无必要性的立法机构经常性的集会以及会议长期召开，对公民而言仅仅是一种负担，而且必然的会产生更危险的麻烦，不过形势急剧变化的时候有时确实需要他们的帮助：任何耽误他们的集会都可能使公众处于危险之中；有时他们的事务可能确实非常繁重，预定的有限的期限对他们的工作而言可能太短，这些原本只要他们充分的商议就可拥有的公共利益却可能丧失。在这种情况下，应当怎样做才能避免共同体由于对立法机构的集会和立法固定间隔和期限而使某些时候或某些方面暴露于明显的危险之中？除了将之托付给某个常在的人的审慎来处理，他了解公共事务的情况，可以使用这种特殊权力来为公共利益服务。还能找到和他一样好的人选吗？为了同样的目的谁能托付法律的执行权力？所以，没有被最初宪法确定的立法机构的集会和议事时间的管理问题，自然的就落到了执行权力的手中，这不是一种仅凭他个人的兴致的肆意权力，而是基于这种信任只能为了公共利益，当发生意外并随着形势变化可能要求行使的权力。是确定立法机构的集会时间，还是将召集立法机构的自由留给君主，或者很可能是这二者的混合，这不是我在此想深究的问题，我只是想说明，虽然执行权力可以拥有召集和解散立法会议的特殊权力，不过并不因此而高于它。

WIND

§157. Things of this world are in so constant a flux, that nothing remains long in the same state. Thus people, riches, trade, power, change their stations, flourishing mighty cities come to ruin, and prove in times neglected desolate corners, whilst other unfrequented places grow into populous countries, filled with wealth and inhabitants. But things not always changing equally, and private interest often keeping up customs and privileges, when the reasons of them are ceased, it often comes to pass, that in governments, where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was at first established upon. To what gross absurdities the following of custom, when reason has left it, may lead, we may be satisfied, when we see the bare name of a town, of which there remains not so much as the ruins, where scarce so much housing as a sheepcote, or more inhabitants than a shepherd is to be found, sends as many representatives to the grand assembly of law-makers, as a whole county numerous in people, and powerful in riches. This strangers stand amazed at, and every one must confess needs a remedy; tho' most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society, antecedent to all positive laws in it, and depending wholly on the people, no inferior power can alter it. And therefore the people, when the legislative is once constituted, having, in such a government as we have been speaking of, no power to act as long as the government stands; this inconvenience is thought incapable of a remedy.
§157. 这个世界的事物总是处于变动之中，没有什么能够长久的保持同一状态。因此，人，财富，贸易，权力都会改变它们的位置，繁荣强大的城市衰败灭亡，最终沦为被人忽视的荒凉的角落，同时其它人迹罕至的地方发展成财富和居民聚集的国家。但是事物并不是同等的改变，当它们存在的理由消失之后，私人利益常常将某些习俗和特殊权利保留了下来，经常发生这样的情况——在某些政府中，由公民选出的代表组成的部分立法权力，随着时间的流逝，这种代表制变得非常不平等，与最初建立的理由不相符合。当下述习俗存在的理由消失之后，我们来看看这些习俗会产生怎样明显的荒谬，可以得到满意的答案——一座只剩下名字的小城，遗留的多是废墟，房屋差不多就是羊圈，居民不会比牧羊人多，仍然同那些人口众多财富丰裕的城镇一样派出许多代表去参加立法者的大议会。外人为之瞠目，每个人都承认需要矫正；虽然大多数人认为很难找到矫正的方法，因为既然立法权力所制定的宪法是社会的最初和最高的法案，在社会中是一切肯定性法律的前提，并完全取决于公民，任何低级权力都不能变更它。所以这些人，立法权力一旦建立——在我们刚说的这样的政府中——只要政府存在便没有权力行动；这种麻烦被认为是无法矫正的。

§158. Salus populi suprema lex, is certainly so just and fundamental a rule, that he, who sincerely follows it, cannot dangerously err. If therefore the executive, who has the power of convoking the legislative, observing rather the true proportion, than fashion of representation, regulates, not by old custom, but true reason, the number of members, in all places that have a right to be distinctly represented, which no part of the people however incorporated can pretend to, but in proportion to the assistance which it affords to the public, it cannot be judged to have set up a new legislative, but to have restored the old and true one, and to have rectified the disorders which succession of time had insensibly, as well as inevitably introduced: For it being the interest as well as intention of the people, to have a fair and equal representative; whoever brings it nearest to that, is an undoubted friend to, and establisher of the government, and cannot miss the consent and approbation of the community; prerogative being nothing but a power, in the hands of the prince, to provide for the public good, in such cases, which depending upon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct; whatsoever shall be done manifestly for the good of the people, and the establishing the government upon its true foundations, is, and always will be, just prerogative. The power of erecting new corporations, and therewith new representatives, carries with it a supposition, that in time the measures of representation might vary, and those places have a just right to be represented which before had none; and by the same reason, those cease to have a right, and be too inconsiderable for such a privilege, which before had it. 'Tis not a change from the present state, which perhaps corruption or decay has introduced, that makes an inroad upon the government, but the tendency of it to injure or oppress the people, and to set up one part or party, with a distinction from, and an unequal subjection of the rest. Whatsoever cannot but be acknowledged to be of advantage to the society, and people in general, upon just and lasting measures, will always, when done, justify itself; and whenever the people shall chuse their representatives upon just and undeniably equal measures, suitable to the original frame of the government, it cannot be doubted to be the will and act of the society, whoever permitted or caused them so to do.
§158. 公民的利益是最高的法律（Salus populi suprema lex，拉丁文，出自西塞罗的著作《论法律》，意即：Let the good of the people be the supreme law），的确是如此正当和基础性的规则，谁真诚的遵循它，谁就不会危险的犯错。所以，如果拥有召集立法机构的权力的执行权力，遵从真正的比例而不是代表制的表面形式（fashion），根据真正的理性而不是旧的习俗来管理所有有权利被分别代表的地方的人数，这种代表人数任何地方都不能自我宣称，而必须与它提供给公众的支持相称，这不能被认为是建立了一种新的立法权力，而是恢复了旧的和真正的立法权力，并矫正了由于时间流逝不知不觉所继承的和不可避免的引入所产生的混乱：因为既然拥有公平和平等的代表是公民的利益和意图所在；无论是谁使它更接近这一点，谁便无可置疑的是这样的政府的朋友和奠基者，并不会得不到共同体的同意和认可；特殊权力也仅仅是这样一种权力，在取决于无法预见和不确定的事件的情况下，确定的和不可变更的法律不能安全的引导，于是君主行使它来为公众的利益服务；无论做什么，只要明显的是为公民的利益并将政府建于它真正的基础之上，是并且总是正当的特殊权力。建立新社团的权力和随之而来的新代表的产生，带来这样一个假设，即代表的人数不时会发生变化，以前没有权利选举代表的地方将会拥有这种权利；以及由于同样的原因，以前拥有这种权利的地方却终止了这种权利，没有再加考虑的必要。现在国家所发生的变化，侵蚀政府的，不是那些有可能引入的堕落和腐烂，而是政府趋向于伤害和压迫它的公民，并扶植一部分人或一撮人，使他们区别并与其余的人不再平等。无论做什么，若能被认为是为了社会和全体公民的利益，基于正当和永恒的标准，总是能够自我证明为正当；无论何时，公民基于公正和无可争辩的平等标准挑选他们的代表，只要与最初的政府框架相符合，就无可置疑的是社会的意志和行动，无论是谁允许或促使他们这样做。

WIND

几点感想:
1,洛克的这篇论文,以及孟德斯鸠对三权分立的看法,其实都是以当时的英格兰为背景的,因而也带有明显的英国色彩;可以说,没有英国几百年独特的宪政史,也就没有洛克和孟德斯鸠了.不过也正如孟德斯鸠所说,他主要的还是提供给大家一种思考的方法.所以,学习英国,能够真正学到并有所超越的,怕也只有美国了.
2,在英国,常被说的一句话是"God save the king",而美国相应的是“God save America”;在英国，司法权力和外交权力名义上都授与国王，所有的法官和所有的下级官员都宣誓忠于国王，国王成了一个国家的象征物，美国取消了这个象征物，所有的法官和行政人员都宣誓直接忠于国家，而国家的内涵则由宪法给出了一个成文性的表达。
3，洛克的这篇文章里，也是经常提到公民利益，国家利益，社会利益等等概念，而世界上也有太多的垃圾国家出口必社会利益国家利益，那么，到底什么是国家利益社会利益？这篇文章虽有不少阐述，然而也没有更深入更具体的论述。不过有一点是可以肯定的，国家利益首先是臣属于国家的每个公民的利益，因而每个公民的权利的保护是国家首要的目标。

WIND

Chapter XIV.
Of Prerogative.
第十四章 论特殊权力

§159. WHERE the legislative and executive power are in distinct hands, (as they are in all moderated monarchies, and well-framed governments) there the good of the society requires, that several things should be left to the discretion of him that has the executive power: for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it: many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require. Nay, it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. that as much as may be, all the members of the society are to be preserved: for since many accidents may happen, wherein a strict and rigid observation of the laws may do harm; (as not to pull down an innocent man's house to stop the fire, when the next to it is burning) and a man may come sometimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon; 'tis[it is] fit the ruler should have a power, in many cases, to mitigate the severity of the law, and pardon some offenders: for the end of government being the preservation of all, as much as may be, even the guilty are to be spared, where it can prove no prejudice to the innocent.
§159. 在立法和执行权力置于完全不同的手中的地方，（比如在所有温和的君主国和良好架构的政府中）社会的利益要求，有几种事情应当留给拥有执行权力的审慎来决定：因为，既然立法者们不能预见所有于共同体有用的事情并用法律加以规定，那么拥有权力的法律执行者，基于共同的自然法便拥有权利，在自治法律没有给出引导的许多情况下为社会的利益来使用它，直到立法权力能使适时的集会并作出规定：也有许多事情，法律无法进行规定；这些事情必然的留给掌握执行权力的人的审慎，依照公共利益的要求来进行指挥。不仅如此，在某些情况下法律本身让位于执行权力是恰当的，或更恰当的说是让位于这一自然和政府的基本法，即如果可能，应当保护所有的社会成员：因为许多意外事件可能发生，此时严格和刚性的遵守法律反而可能有害；（比如当紧挨的房屋着火的时候，不将这家无辜的人的房屋拆掉以阻止火灾）一个人可能有时会闯进法律的界限内，法律对所有的这样的人没有加以区别，而有些这样的行为是应当得到奖赏和宽恕的；所以，在许多情况下，统治者拥有权力来缓和法律的严厉并宽恕某些侵犯者是恰当的：既然政府的目的是尽可能的保护所有的人，那么在能够证明没有对无辜的人造成侵害的情况下，即使罪人也能够得到赦免。

WIND

§160. This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigor, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.
§160. 这种依据审慎行动的权力，为着公共利益，无法律规定，甚至有时违背了法律，被称之为特殊权力：因为在某些政府中制定法律的权力并不一直存在，通常人数太多，从而对于执行所必须的迅速来说行动太慢；也因为不可能预见所有与公共利益相关的意外和必要条件，从而通过法律加以规定，或者，在所有的场合，对所有涉及法律的人，如果僵硬的严格的执行法律，这样的法律便不可能没有害处；所以，留给了执行权力一个自由余地，在法律没有做出规定的情况下可自行选择。

WIND

§161. This power, whilst employed for the benefit of the community, and suitably to the trust and ends of the government, is undoubted prerogative, and never is questioned: for the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative, whilst it is in any tolerable degree employed for the use it was meant, that is, for the good of the people, and not manifestly against it: but if there comes to be a question between the executive power and the people, about a thing claimed as a prerogative; the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that question.
§161. 这种权力，当为共同体的利益并与这种信任和政府的目的相符合而使用时，无疑就是特殊权力，不会受到怀疑的：因为公民很少甚至不会在这一点上过分苛刻；当在任何可忍受的程度内在它真正的意义上——即为公民的利益而不是明显的违背它——使用这种权力时，他们是不会对特殊权力进行审查的：但是如果在执行权力和公民之间出现声称特殊权力的问题；这样的特殊权力的行使对公民是有益还是有害的倾向，便很容易判断那个问题。

§162. It is easy to conceive, that in the infancy of governments, when commonwealths differed little from families in number of people, they differed from them too but little in number of laws: and the governors, being as the fathers of them, watching over them for their good, the government was almost all prerogative. A few established laws served the turn, and the discretion and care of the ruler supplied the rest. But when mistake or flattery prevailed with weak princes to make use of this power for private ends of their own, and not for the public good, the people were fain by express laws to get prerogative determined in those points wherein they found disadvantage from it: and thus declared limitations of prerogative were by the people found necessary in cases which they and their ancestors had left, in the utmost latitude, to the wisdom of those princes who made no other but a right use of it, that is, for the good of their people.
§162. 不难设想，在政府的早期阶段，当在人数上国家与家族差别不大时，它们在法律的数量上差别也不大：统治者，作为他们的父亲，为他们的利益照看他们，统治权力几乎全是特殊权力。少量确定的法律便足以应付这种情况了，其余由统治者的审慎和关心来处理。但是，当误解和奉承战胜了脆弱的君主们的心智，他们将这种权力用于他们的私人目标而不是公共利益时，公民便不得不通过明确的法律将特殊权力中他们找到的那些缺陷加以规定：公民发现，在他们和他们祖先所遗留下来的问题中，这样明确对特殊权力进行限制是必要的，以便在最大的限度内，让君主们的聪明仅仅用于正当的使用权力，即为他们的臣民的利益。

feilian

这个东西不要翻译版权，翻好了出版

WIND

§163. And therefore they have a very wrong notion of government, who say, that the people have encroached upon the prerogative, when they have got any part of it to be defined by positive laws: for in so doing they have not pulled from the prince any thing that of right belonged to him, but only declared, that that power which they indefinitely left in his or his ancestors hands, to be exercised for their good, was not a thing which they intended him when he used it otherwise: for the end of government being the good of the community, whatsoever alterations are made in it, tending to that end, cannot be an encroachment upon any body, since no body in government can have a right tending to any other end: and those only are encroachments which prejudice or hinder the public good. Those who say otherwise, speak as if the prince had a distinct and separate interest from the good of the community, and was not made for it; the root and source from which spring almost all those evils and disorders which happen in kingly governments. And indeed, if that be so, the people under his government are not a society of rational creatures, entered into a community for their mutual good; they are not such as have set rulers over themselves, to guard, and promote that good; but are to be looked on as an herd of inferior creatures under the dominion of a master, who keeps them and works them for his own pleasure or profit. If men were so void of reason, and brutish, as to enter into society upon such terms, prerogative might indeed be, what some men would have it, an arbitrary power to do things hurtful to the people.
§163. 所以，他们对政府有一个错误的观念，他们说，当公民通过肯定性的法律对某些特殊权力进行定义的时候，便侵蚀了特殊权力：因为这样做的时候，他们并没有取消任何应当属于君主的资格，而只是宣布——他们未加限制的留给他或他的祖先们为着他们的利益而行使的权力，当他用于其它的方面便不再是他们的意图了：既然政府的目的是共同体的利益，无论共同体做怎样的改变，只要是为了那个目的，便不能认为是侵蚀任何人的权力，因为政府中没有人有权利趋向于其它的目的：只有损害或阻碍公共利益才是侵蚀。还有一种说法，似乎认为君主本来就与共同体拥有不同并且分离的利益，设置君主并非为了共同体的利益；这种根源产生了几乎所有君主制政府中所发生的罪恶和混乱。实际上，如果是那样，那么人们置于他的政府之下便不是理性被造物为他们彼此的利益进入共同体所建立的社会；他们不是为捍卫和促进自身的利益而设置他们的统治者的人；而应该视为一个主人所拥有的低级牲畜，他保存它们，使它们劳作，只是为了他自己的快乐和利益。如果人们如此缺乏理性，像畜生一样，基于这样的条件进入社会，那么特殊权力可能确实如某些人所认为的那样，是一种伤害公民的肆意权力。

WIND

随着社会的发展和法律的完善，特殊权力越来越多地得到定义和限制，因而范围越来越小，而得到定义和限制的权力便成为一般意义上的“权力”。同样，特殊权利（privilege）,越来越多地得到定义，从而不断扩大一般意义上的“权利”概念。

WIND

§164. But since a rational creature cannot be supposed, when free, to put himself into subjection to another, for his own harm; (though, where he finds a good and wise ruler, he may not perhaps think it either necessary or useful to set precise bounds to his power in all things) prerogative can be nothing but the people's permitting their rulers to do several things, of their own free choice, where the law was silent, and sometimes too against the direct letter of the law, for the public good; and their acquiescing in it when so done: for as a good prince, who is mindful of the trust put into his hands, and careful of the good of his people, cannot have too much prerogative, that is, power to do good; so a weak and ill prince, who would claim that power which his predecessors exercised without the direction of the law, as a prerogative belonging to him by right of his office, which he may exercise at his pleasure, to make or promote an interest distinct from that of the public, gives the people an occasion to claim their right, and limit that power, which, whilst it was exercised for their good, they were content should be tacitly allowed.
§164. 但是，既然不能假设一种理性被造物，当他自由的时候，会为了伤害自己而臣服于他人；（虽然，当他找到一个良好的有智慧的统治者时，他也许不会认为在所有的事情中对他的权利进行精确限定是必要或有用的）特殊权力便只能是公民允许他们的统治者在法律未作规定的地方，有时甚至是违背直接的法律条文，为了公共利益，自行处理一些事情；他们对此默认：因为作为一个良好的君主，意识到交托给他的信任，关心他的臣民的利益，绝不会拥有太多的特殊权力，即行正义的权力多多益善；相反作为一个不合格和有害的君主，他便会声称他的前任所行使的未作法律说明的权力是属于他的特殊权力，基于他担任此职的权利可以随意行使，以获得或促进一种与公共利益截然不同的私利，这便给与公民机会来宣告他们的权利，并限制君主的权力，这种权力在为他们的利益而行使的时候，他们是满足于默许这种状态的。

WIND

§165. And therefore he that will look into the history of England, will find, that prerogative was always largest in the hands of our wisest and best princes; because the people, observing the whole tendency of their actions to be the public good, contested not what was done without law to that end: or, if any human frailty or mistake (for princes are but men, made as others) appeared in some small declinations from that end; yet 'twas[it was] visible, the main of their conduct tended to nothing but the care of the public. The people therefore, finding reason to be satisfied with these princes, whenever they acted without, or contrary to the letter of the law, acquiesced in what they did, and, without the least complaint, let them inlarge their prerogative as they pleased, judging rightly, that they did nothing herein to the prejudice of their laws, since they acted conformable to the foundation and end of all laws, the public good.
§165. 因此，只要看一下英格兰的历史，他就会发现，在我们最具智慧最好的君主手里，特殊权力总是最大；因为公民注意到了他们的行为的整个趋向是为了公共利益，对他们没有法律依据的行为并没有什么争议：或者，如果在某些与那个目的的偏离中表现出任何人类的缺陷或过失（因为君主也不过是人，与别人一样）；然而很明显，他们主要的行为趋向也只是对公共利益的关注。所以，在找到理由对这些君主感到满意之后，无论他们没有法律依据还是与法律条文相违背，均对他们的作为予以默认，没有丝毫的抱怨，让他们可以随自己的意愿扩大特殊权力，公正的说，既然他们的行动与所有法律的基础和目的——公共利益——相符合，他们便没有因此而损害他们的法律。

WIND

§166. Such god-like princes indeed had some title to arbitrary power by that argument, that would prove absolute monarchy the best government, as that which God himself governs the universe by; because such kings partake of his wisdom and goodness. Upon this is founded that saying, that the reigns of good princes have been always most dangerous to the liberties of their people: for when their successors, managing the government with different thoughts, would draw the actions of those good rulers into precedent, and make them the standard of their prerogative, as if what had been done only for the good of the people was a right in them to do, for the harm of the people, if they so pleased; it has often occasioned contest, and sometimes public disorders, before the people could recover their original right, and get that to be declared not to be prerogative, which truly was never so; since it is impossible that any body in the society should ever have a right to do the people harm; though it be very possible, and reasonable, that the people should not go about to set any bounds to the prerogative of those kings, or rulers, who themselves transgressed not the bounds of the public good: for prerogative is nothing but the power of doing public good without a rule.
§166. 如此神一般的君主，根据那种证明绝对君主制是最好的政府的说法，确实拥有一些独断权力的资格，正如神自己也用独断权力来统治宇宙一样；因为这样的国王也带有了祂的智慧和仁慈。基于这一点便产生了这样的说法——良好君主的统治对于他们臣民的自由总是最危险的：因为当他们拥有不同思想的继承者管理政府的时候，将会将那些良好统治者的行为引为先例，使他们成为继承者的榜样，仿佛以前只为公民利益而做的事情，在继承者这里就成了一种可以随意伤害臣民的权利；这在公民能够恢复他们原来的权利，并宣告这不是且从来不是什么特殊权力之前，常常引起冲突，有时甚至引起了公共秩序混乱；既然社会中的任何人都不可能有权利伤害公民；虽然这非常可能并且合理，即公民没有对那些并未超越公共利益的界限的国王或统治者的特殊权力设置任何界限：因为特殊权力仅仅是在没有规定的情况下服务于公共利益的权利。

WIND

§167. The power of calling parliaments in England, as to precise time, place, and duration, is certainly a prerogative of the king, but still with this trust, that it shall be made use of for the good of the nation, as the exigencies of the times, and variety of occasions, shall require: for it being impossible to foresee which should always be the fittest place for them to assemble in, and what the best season; the choice of these was left with the executive power, as might be most subservient to the public good, and best suit the ends of parliaments.
§167. 在英格兰召集国会的权力，比如确定时间，地点和期限，确实是国王的特殊权力，但是仍然是基于这样的信任，即这种权力应当根据紧急情况和形势变化的要求用来服务于国家的利益：因为不可能预见何地何时总是最适合集会的地点和时间；便将这些选择交由执行权力，以便可能最好的服务于公共利益，最好的符合国会的目的。

WIND

§168. The old question will be asked in this matter of prerogative, But who shall be judge whether this power is made a right use of? I answer, between an executive power in being, with such a prerogative, and a legislative that depends upon his will for their convening, there can be no judge on earth; as there can be none between the legislative and the people, should either the executive, or the legislative, when they have got the power in their hands, design, or go about to enslave or destroy them. The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven: for the rulers, in such attempts, exercising a power the people never put into their hands, (who can never be supposed to consent that any body should rule over them for their harm) do that which they have not a right to do. And where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power without right, and have no appeal on earth, then they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have, by the constitution of that society, any superior power, to determine and give effective sentence in the case; yet they have, by a law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, viz. to judge, whether they have just cause to make their appeal to heaven. And this judgment they cannot part with, it being out of a man's power so to submit himself to another, as to give him a liberty to destroy him; God and nature never allowing a man so to abandon himself, as to neglect his own preservation: and since he cannot take away his own life, neither can he give another power to take it. Nor let any one think, this lays a perpetual foundation for disorder; for this operates not, till the inconveniency is so great, that the majority feel it, and are weary of it, and find a necessity to have it amended. But this the executive power, or wise princes, never need come in the danger of: and it is the thing, of all others, they have most need to avoid, as of all others the most perilous.
§168. 于是就有了一个有关特殊权力的老问题，即此权力是否正当使用，谁应当担当审判者？我的回答是，在拥有这些特殊权力的常在的执行权力和依赖于执行权力来召集的立法权力之间，在世上不可能有审判者；如同执行权力或立法权力在其掌握权力之后，意图或忙于奴役或毁灭他们，在立法权力和公民之间也不可能有审判者。对此公民没有别的办法，如同在世上没有审判者的所有其它情况一样，只能向天国申诉：因为统治者在这样的企图中，行使了一种公民从未授与的权力，（谁能够被假设会同意他人为了伤害他们而统治他们）做了他们没有权利去做的事情。在一群人或单个人的权利被剥夺，或置身于一种没有权利的权力行使之下的情况中，若在世上无可申诉，那么无论何时只要他们认定有足够的理由就有向天国申诉的自由。因此，虽然公民不能担当审判者，以致基于那个社会的宪法而成为任何较高级的权力，在这种情况下来决定并给出有效的判决；然而他们，基于一种先于并高于所有人类肯定性法律的法律，在世上无可申诉的情况下，仍然保留着属于所有人类的一种最终决定权，换言之，自行审判是否有正当理由去向天国申诉。这种审判他们不能与之分离，因为一个人没有权力服从与他人，以便给与他人一种毁灭他的自由；上帝和自然从未允许一个人这样自暴自弃，以致忽略他自身的保护：而且，既然他不能剥夺自己的生命，他也就不能授与他人一种剥夺他的生命的权力。任何人不要认为，这埋下了永久混乱的根源；因为这种事情只有弊端大到多数都能感觉并且难以忍受以致觉得有必要修正的时候才会发生。但是执行权力或聪明的君主从不需要置身于这样的危险之中：这是所有的事情中，他们最需要避免的，也是所有的事情中最冒险的。

WIND

Chapter XV.
Of Paternal, Political, and Despotical Power, considered together.
第十五章 综论父权力，政治权力及独断权力

§169. THOUGH I have had occasion to speak of these separately before, yet the great mistakes of late about government, having, as I suppose, arisen from confounding these distinct powers one with another, it may not, perhaps, be amiss to consider them here together.
§169. 虽然我前面已分别论及这些权力，然而近来对政府的重大误解，以我的猜测，已经混淆了这些截然不同的权力，所以在此一起考虑也许不是不恰当的。

WIND

§170. First, then, Paternal or parental power is nothing but that which parents have over their children, to govern them for the children's good, till they come to the use of reason, or a state of knowledge, wherein they may be supposed capable to understand that rule, whether it be the law of nature, or the municipal law of their country, they are to govern themselves by: capable, I say, to know it, as well as several others, who live as freemen under that law. The affection and tenderness which God hath planted in the breast of parents towards their children, makes it evident, that this is not intended to be a severe arbitrary government, but only for the help, instruction, and preservation of their offspring. But happen it as it will, there is, as I have proved, no reason why it should be thought to extend to life and death, at any time, over their children, more than over any body else; neither can there be any pretence why this parental power should keep the child, when grown to a man, in subjection to the will of his parents, any farther than having received life and education from his parents, obliges him to respect, honour, gratitude, assistance and support, all his life, to both father and mother. And thus, 'tis true, the paternal is a natural government, but not at all extending itself to the ends and jurisdictions of that which is political. The power of the father doth not reach at all to the property of the child, which is only in his own disposing.
§170. 那么首先，父权力或亲权力仅仅是父母对他们孩子的权力，为了孩子们的利益而统治他们，直到他们能够使用理性或达到一种有知识的状态，在这种状态中假定他们能够理解据以统治他们自己的自然法或他们国家自治法律这些规则：我说“能够”的意思是指和其他作为自由人生活于那种法律之下的人一样了解它。上帝置于父母内心的感情和慈爱倾向于他们的孩子，很明显，按祂的意图这并不是一种严厉的肆意的统治，而仅仅是为了帮助，教导和保护他们的后代。但是无论发生什么，正如我已经证明的，任何时候都没有理由认为应当延及他们孩子的生和死的，父母在这一点上并不比对其他人的权力更多；当孩子长大成人，父母也没有任何借口继续要求孩子服从于父母的意志，让他们承担任何超过由于受父母的生养教育而终身负有的尊重，感激，帮助和支持父母的责任。这样的话，确实，父权力是一种自然的统治，但是完全不能延伸到政治权力的目的和管辖范围之内。父亲的权力完全不能涉及孩子的财产，它只能由孩子自己来处置。

WIND

§171. Secondly, Political power is that power, which every man having in the state of nature, has given up into the hands of the society, and therein to the governors, whom the society hath set over itself, with this express or tacit trust, that it shall be employed for their good, and the preservation of their property: now this power, which every man has in the state of nature, and which he parts with to the society in all such cases where the society can secure him, is to use such means, for the preserving of his own property, as he thinks good, and nature allows him; and to punish the breach of the law of nature in others, so as (according to the best of his reason) may most conduce to the preservation of himself, and the rest of mankind. So that the end and measure of this power, when in every man's hands in the state of nature, being the preservation of all of his society, that is, all mankind in general, it can have no other end or measure, when in the hands of the magistrate, but to preserve the members of that society in their lives, liberties, and possessions; and so cannot be an absolute, arbitrary power over their lives and fortunes, which are as much as possible to be preserved; but a power to make laws, and annex such penalties to them, as may tend to the preservation of the whole, by cutting off those parts, and those only, which are so corrupt, that they threaten the sound and healthy, without which no severity is lawful. And this power has its original only from compact and agreement, and the mutual consent of those who make up the community.
§171. 第二，政治权力则是每个人将自然状态中所拥有的权力交给社会，然后授与设置于社会之上的统治者，连同这种明确或默认的信任，即这种权力应当为他们的利益和他们财产的保护而使用：现在这种权力——每个人在自然状态中所拥有的，在所有社会能够保障他的情况下他分离给社会的——便可使用他认为适当和自然所允许的那些方式以保护他自己的财产；并惩罚他人违反自然法的行为，只要可以最有助于保护他自己和其余的人类。所以，这种权力的目的和衡量标准，当在自然状态中的人手中的时候，是为了保护他的社会中所有的人即全人类，当交到社会管理者的手中时，便不可能有别的目的和衡量标准，而只能保护这个社会的成员的生命，自由和财产；因此便不能是一种对他们的生命和财产的绝对和肆意的权力，成员的生命和财产应当尽可能的得到保护；而只能是这样一种权力，制定法律并附加这样的惩罚，通过除去那些部分，并仅限于这部分——这部分败坏到威胁社会的健康的程度——以保护整体，若不是这样法律的严厉便是非法的。这种权力仅仅来源于组成共同体的那些成员的契约和彼此的同意。

WIND

§172. Thirdly, Despotical power is an absolute, arbitrary power one man has over another, to take away his life, whenever he pleases. This is a power, which neither nature gives, for it has made no such distinction between one man and another; nor compact can convey, for man not having such an arbitrary power over his own life, cannot give another man such a power over it; but it is the effect only of forfeiture, which the aggressor makes of his own life, when he puts himself into the state of war with another: for having quitted reason, which God hath given to be the rule betwixt man and man, and the common bond whereby human kind is united into one fellowship and society; and having renounced the way of peace which that teaches, and made use of the force of war, to compass his unjust ends upon another, where he has no right; and so revolting from his own kind to that of beasts, by making force, which is their's, to be his rule of right, he renders himself liable to be destroyed by the injured person, and the rest of mankind, that will join with him in the execution of justice, as any other wild beast, or noxious brute, with whom mankind can have neither society nor security*. And thus captives, taken in a just and lawful war, and such only, are subject to a despotical power, which, as it arises not from compact, so neither is it capable of any, but is the state of war continued: for what compact can be made with a man that is not master of his own life? what condition can he perform? and if he be once allowed to be master of his own life, the despotical, arbitrary power of his master ceases. He that is master of himself, and his own life, has a right too to the means of preserving it; so that as soon as compact enters, slavery ceases, and he so far quits his absolute power, and puts an end to the state of war, who enters into conditions with his captive.
§172. 第三，独断权力是一个人对另一个人的绝对和肆意的权力，可以随时剥夺他的生命。这种权力，既不是自然所给与的，因为自然并未在他们之间做出这种区别；也不是契约能转让的，因为人对自己的生命并没有这样一种肆意的权力，便不能给与他人对他的生命拥有这样一种权力；而只是入侵者在与他人处于战争状态的时候生命权利丧失的结果：因为既已离开理性——理性是上帝给与人类作为彼此之间的规则和共同的纽带，人类因此而联合成一个团体和社会；既已抛弃理性所教导的和平之路，转而使用战争的力量，以达到他对他人的不正当的目的，在这种情况下他是没有权利的；因而背叛了人类而成了野兽，使用野兽的暴行作为他的权利规则，便使他自己应被他所伤害的人和加入到行使正义的其余人类予以毁灭，就像毁灭任何其它的野兽或有害的牲畜一样，和他在一起人类既无法形成社会也不安全。这样的话，在并且只有在正当和合法的战争中抓获的俘虏才服从于一种独断的权力，因为这并非源于契约，所以也无法订立契约，而只是战争状态的延续：因为与一个不能为自身作主的人能订立什么样的契约呢？他能履行什么样的条件呢？如果一旦他被允许可以做自身的主人，那么他主人的独断肆意的权力就终止了。作为自己生命的主人，他也有权利设法保护他的生命；所以，只要订立了契约，奴役就终止，一个人只要与他的俘虏议定条件，他便即刻放弃了他的绝对权力，并终止了战争状态。

WIND

我发现英文似乎有一种洁癖（借用一下，如果在其他场合是贬义，那么此处是褒义），这里说的独断权力，也是一种正当的权力，他们首先做的是将不正当的权力从权力概念中剔除出去，就像布莱克斯通说英国的法律，英国人首先是将非正义的法律从法律概念中剔除出去。于是，接受权力的统治，其实是接受正当权力的统治，接受法律的统治，其实是接受正义的法律的统治。

WIND

§173. Nature gives the first of these, viz. paternal power to parents for the benefit of their children during their minority, to supply their want of ability, and understanding how to manage their property. (By property I must be understood here, as in other places, to mean that property which men have in their persons as well as goods.) Voluntary agreement gives the second, viz. political power to governors for the benefit of their subjects, to secure them in the possession and use of their properties. And forfeiture gives the third despotical power to lords for their own benefit, over those who are stripped of all property.
§173. 自然给与了第一种即父权力给父母，为了他们孩子的未成年期的利益，以弥补他们在如何管理自己的财产上的能力和理解力的缺乏。（必须指出，我这里所指的property，也像其它地方一样，都是指人们所拥有的人身和财产。）自愿性的协议给与了第二种即政治权力给统治者，为了他们的臣民的利益，以保障他们的财产和对财产的使用。权利的丧失给与了第三种独断权力，为了主人自己的利益，他们对那些丧失所有财产的人拥有这种权力。

§174. He, that shall consider the distinct rise and extent, and the different ends of these several powers, will plainly see, that paternal power comes as far short of that of the magistrate, as despotical exceeds it; and that absolute dominion, however placed, is so far from being one kind of civil society, that it is as inconsistent with it, as slavery is with property. Paternal power is only where minority makes the child incapable to manage his property; political, where men have property in their own disposal; and despotical, over such as have no property at all.
§174. 谁若考虑一下这几种权力截然不同的起源和边界，以及不同的目的，他就会很明白的看到，父权力远不及管理者的政治权力，而独断权力又超越了政治权力；而绝对统治权，无论交给谁，都远不是一种公民社会的统治权力，它与公民社会的冲突，如同奴隶可以拥有财产。父权力仅存在于未成年的孩子不能管理他自己的财产的场合；在政治权力中，人们可以自行处置他的财产；而独断权力则是针对那些完全没有财产的人。

WIND

Chapter XVI.
Of Conquest.
第十六章 论征服

§175. THOUGH governments can originally have no other rise than that before mentioned, nor polities be founded on any thing but the consent of the people; yet such have been the disorders ambition has filled the world with, that in the noise of war, which makes so great a part of the history of mankind, this consent is little taken notice of: and therefore many have mistaken the force of arms for the consent of the people, and reckon conquest as one of the originals of government. But conquest is as far from setting up any government, as demolishing an house is from building a new one in the place. Indeed, it often makes way for a new frame of a common-wealth, by destroying the former; but, without the consent of the people, can never erect a new one.
§175. 虽然，除前面提到的，政府并没有其它的起源，政制也只能以公民的同意为基础；然而野心使世界充满了混乱，以致在人类历史的绝大部分的战争的喧嚣中，很少注意到这种同意：所以，许多人将武力误认为公民的同意，从而也将征服作为政府的一种起源。但是征服离建立任何政府其实很遥远，如同拆毁一座房屋离在此建立一座新的。实际上，常常通过摧毁前面的政府来为新政府的架构铺路；但是，未经公民的同意，永远不能建立一个新的。

WIND

§176. That the aggressor, who puts himself into the state of war with another, and unjustly invades another man's right, can, by such an unjust war, never come to have a right over the conquered, will be easily agreed by all men, who will not think, that robbers and pyrates have a right of empire over whomsoever they have force enough to master, or that men are bound by promises, which unlawful force extorts from them. Should a robber break into my house, and with a dagger at my throat make me seal deeds to convey my estate to him, would this give him any title? Just such a title, by his sword, has an unjust conqueror, who forces me into submission. The injury and the crime is equal, whether committed by the wearer of a crown, or some petty villain. The title of the offender, and the number of his followers, make no difference in the offence, unless it be to aggravate it. The only difference is, great robbers punish little ones, to keep them in their obedience; but the great ones are rewarded with laurels and triumphs, because they are too big for the weak hands of justice in this world, and have the power in their own possession, which should punish offenders. What is my remedy against a robber, that so broke into my house? Appeal to the law for justice. But perhaps justice is denied, or I am crippled and cannot stir, robbed and have not the means to do it. If God has taken away all means of seeking remedy, there is nothing left but patience. But my son, when able, may seek the relief of the law, which I am denied: he or his son may renew his appeal, till he recover his right. But the conquered, or their children, have no court, no arbitrator on earth to appeal to. Then they may appeal, as Jephthah did, to heaven, and repeat their appeal till they have recovered the native right of their ancestors, which was, to have such a legislative over them, as the majority should approve, and freely acquiesce in. If it be objected, this would cause endless trouble; I answer, no more than justice does, where she lies open to all that appeal to her. He that troubles his neighbour without a cause, is punished for it by the justice of the court he appeals to: and he that appeals to heaven must be sure he has right on his side; and a right too that is worth the trouble and cost of the appeal, as he will answer at a tribunal that cannot be deceived, and will be sure to retribute to every one according to the mischiefs he hath created to his fellow subjects; that is, any part of mankind: from whence it is plain, that he that conquers in an unjust war can thereby have no title to the subjection and obedience of the conquered.
§176. 将自己置于与他人交战的状态中，不正当的侵犯了另外一个人的权利的入侵者，绝不能通过这样不正当的战争而对被征服者拥有权利，所有人很容易同意这一点，他们不会认为，抢劫者和海盗对他们武力所制服的人拥有权利，或者人们受非法强制力所获得的承诺的约束。如果一个抢劫者闯入我的屋子，用匕首抵住我的喉咙，叫我答应将我的财产转让给他，这会给与他获得财产的资格吗？这仅仅是一个非正义的征服者用剑逼迫我服从。损害与罪行，不管是配戴王冠的人还是某个卑微的歹徒所为，都是平等的。侵犯者的称谓，以及随从者的数目，除了加重罪行之外，在侵犯上并没有什么不同。唯一不同的是，大盗惩罚小盗，让他们服从；而大盗却获得桂冠和胜利，因为对于这个世界软弱的正义之手所拥有的惩罚侵犯者的力量而言他们太强大。对闯入我房屋的抢劫者，我有什么办法呢？那就是向法律诉求正义。但是也许正义遭到拒绝，或者我因残疾不能行走，遭抢劫却毫无办法。如果上帝夺去了所有寻求矫正的方式，便只能忍耐。但是我的儿子有能力的时候，仍可以寻求法律的救济：他或他的儿子可以重新提起诉讼，直到恢复他的权利。但是被征服者或他们的孩子，在世上没有法庭没有仲裁人可申诉。那么他们可以向耶弗他那样向天国申诉，不断申诉，直到他们恢复他们的祖先生来就有的权利，这种权利就是拥有一个多数批准和自由默认的立法权力来统治他们。如果有人反对，认为这会引起无穷无尽的麻烦；那么我的回答是，这不会比此时的“正义”会引起更多的麻烦。无缘无故打扰邻人的人，受他所申诉的法庭的正义惩罚：如果他向天国申诉，那么他必须确信他这一方有权利；并且这也是一种值得申诉所带来的麻烦和花费的权利，因为他将在一个不会是欺骗性的法庭上为自己辩护，并确信会根据每个人对他的同伴即其他人类所造成的伤害来惩罚各人：由此很明白，非正义的战争的征服者对被征服者没有要求服从的权利。

WIND

§177. But supposing victory favours the right side, let us consider a conqueror in a lawful war, and see what power he gets, and over whom.
§177. 但是假定胜利属于正当的一方，让我们来考虑一下合法战争的征服者，看看他获得了什么权力，以及对谁享有。

李新苗

风兄做事真有耐力呀，一如既往地支持一哈+佩服一哈！

WIND

First, It is plain he gets no power by his conquest over those that conquered with him. They that fought on his side cannot suffer by the conquest, but must at least be as much freemen as they were before. And most commonly they serve upon terms, and on condition to share with their leader, and enjoy a part of the spoil, and other advantages that attend the conquering sword; or at least have a part of the subdued country bestowed upon them. And the conquering people are not, I hope, to be slaves by conquest, and wear their laurels only to shew they are sacrifices to their leaders triumph. They that found absolute monarchy upon the title of the sword, make their heroes, who are the founders of such monarchies, arrant Draw-can-sirs, and forget they had any officers and soldiers that fought on their side in the battles they won, or assisted them in the subduing, or shared in possessing, the countries they mastered. We are told by some, that the English monarchy is founded in the Norman conquest, and that our princes have thereby a title to absolute dominion: which if it were true, (as by the history it appears otherwise) and that William had a right to make war on this island; yet his dominion by conquest could reach no farther than to the Saxons and Britons, that were then inhabitants of this country. The Normans that came with him, and helped to conquer, and all descended from them, are freemen, and no subjects by conquest; let that give what dominion it will. And if I, or any body else, shall claim freedom, as derived from them, it will be very hard to prove the contrary: and it is plain, the law, that has made no distinction between the one and the other, intends not there should be any difference in their freedom or privileges.
首先，很明白，他通过他的征服对那些与他一起征服的人并没有获得什么权力。与他一同战斗的人不能因为征服而有所损失，而至少必须像之前一样作为自由人。最通常的情况是他们基于一定的条件，服务并与他们首领分享战利品以及其它一些由胜利得来的利益；或至少获得被征服的国家所给与的一部分。我希望征服国家的人，不是通过征服而成为奴隶，并仅仅为了表明他们是他们首领胜利的献祭品而戴上桂冠。那些用刀剑建立绝对君主制的人，使他们的英雄即这样的君主国的奠基者们，变成了彻头彻尾的Draw-can-sir（George Villiers（1628–1687）一部戏剧中的一个角色，一个恶霸的形象），忘记了他们的军官和士兵曾经在他们获胜的战斗中同他们一同战斗，或帮助征服，或一同占有他们所控制的国家。有些人告诉我们，英格兰的君主制是以诺曼征服为基础建立的，我们的君主们便因此而拥有了绝对统治的资格：如果这是真的，（因为从历史来看，并不是这样）威廉拥有权利对这个岛国发动战争；然而通过征服获得的统治权也不能超过那个时候这个国家的居民撒克森人和布立吞人。那些与他一同来的并帮助他征服的人，以及所有他们的后代，都是自由人，不是被征服的臣民；无论获得什么样的统治权。如果我或其他任何人，作为他们的后裔要求自由，就很难给出相反的证明：很明白，并未在彼此之间进行区别的法律，在他们的自由或特殊权利上便无意有任何差别。

WIND

§178. But supposing, which seldom happens, that the conquerors and conquered never incorporate into one people, under the same laws and freedom; let us see next what power a lawful conqueror has over the subdued: and that I say is purely despotical. He has an absolute power over the lives of those who by an unjust war have forfeited them; but not over the lives or fortunes of those who engaged not in the war, nor over the possessions even of those who were actually engaged in it.
§178. 但是假定——这种情况是很少发生的——征服者和被征服者并未结合成一个国家置身于同样的法律和自由之下；让我们看看一个合法的征服者对被征服的人拥有什么样的权力：我要说那只有独断的权力。他对那些因为非正义的战争而被剥夺了生命权的人的生命拥有一种绝对的权力；但是对于那些并未参与战争的人的生命或财产，或者即使实际参加了战争的人的财产，却并不拥有这种权力。

§179. Secondly, I say then the conqueror gets no power but only over those who have actually assisted, concurred, or consented to that unjust force that is used against him: for the people having given to their governors no power to do an unjust thing, such as is to make an unjust war, (for they never had such a power in themselves) they ought not to be charged as guilty of the violence and unjustice that is committed in an unjust war, any farther than they actually abet it; no more than they are to be thought guilty of any violence or oppression their governors should use upon the people themselves, or any part of their fellow subjects, they having empowered them no more to the one than to the other. Conquerors, it is true, seldom trouble themselves to make the distinction, but they willingly permit the confusion of war to sweep all together: but yet this alters not the right; for the conquerors power over the lives of the conquered, being only because they have used force to do, or maintain an injustice, he can have that power only over those who have concurred in that force; all the rest are innocent; and he has no more title over the people of that country, who have done him no injury, and so have made no forfeiture of their lives, than he has over any other, who, without any injuries or provocations, have lived upon fair terms with him.
§179. 第二，我要说，征服者只能对那些实际上帮助，协同或同意反对他的非正义力量的人拥有权力：因为人们并未授与他们的统治者去行任何非正义的事情的权力，比如发动非正义的战争，（因为他们自己也没有这样的权力）除非他们实际上鼓励或帮助了非正义的战争，否则不应被指控犯有暴行和非正义的罪行；正如不能因为他们的统治者对他们自己或其他的同伴所施加的暴行或压迫而认为他们有罪一样，因为他们授与统治者的权力，前一种情况并不比后一种多。确实，征服者很少费心去区别这些情况，而是乐意允许战争的混乱将这一切全都清扫干净：但是这改变不了权利的意思；因为征服者对被征服者的生命有支配的权力，仅仅因为后者曾使用力量去进行或维持一种非正义，他只能对那些参与那种非正义力量的人拥有那种权力；其余的人都是无辜的；他对被征服国家的对他没有任何伤害的人没有更多的资格，他不能剥夺他们的生命权，就像他对任何其他基于公正的条件与他和平共处没有伤害他的人一样。

WIND

§180. Thirdly, The power a conqueror gets over those he overcomes in a just war, is perfectly despotical: he has an absolute power over the lives of those, who, by putting themselves in a state of war, have forfeited them; but he has not thereby a right and title to their possessions. This I doubt not, but at first sight will seem a strange doctrine, it being so quite contrary to the practice of the world; there being nothing more familiar in speaking of the dominion of countries, than to say such an one conquered it; as if conquest, without any more ado, conveyed a right of possession. But when we consider, that the practice of the strong and powerful, how universal soever it may be, is seldom the rule of right, however it be one part of the subjection of the conquered, not to argue against the conditions cut out to them by the conquering sword.
§180. 第三，征服者在正义的战争中对被他制服的人所获得权力，完全是独断的权力：他对那些因参与战争而丧失生命权的人的生命拥有一种绝对的权力；但是他并不因此而对他们的财产拥有权利。对此我并不怀疑，不过初看起来似乎是一条陌生的学说，因为世界的实践完全与此相反；因为在说到国家领土的时候，没有比征服获得领土更熟悉的事情了；好像一经征服，便毫无困难的转移了财产权利。但是在我们考虑这个问题的时候，强者的实践无论如何普遍，却很少成为权利的规则，那不过是被征服者顺从的一部分，对征服者用刀剑所获得的条款不予反对而已。

WIND

§181. Though in all war there be usually a complication of force and damage, and the aggressor seldom fails to harm the estate, when he uses force against the persons of those he makes war upon; yet it is the use of force only that puts a man into the state of war: for whether by force he begins the injury, or else having quietly, and by fraud, done the injury, he refuses to make reparation, and by force maintains it, (which is the same thing, as at first to have done it by force) it is the unjust use of force that makes the war: for he that breaks open my house, and violently turns me out of doors; or having peaceably got in, by force keeps me out, does in effect the same thing; supposing we are in such a state, that we have no common judge on earth, whom I may appeal to, and to whom we are both obliged to submit: for of such I am now speaking. It is the unjust use of force then, that puts a man into the state of war with another; and thereby he that is guilty of it makes a forfeiture of his life: for quitting reason, which is the rule given between man and man, and using force, the way of beasts, he becomes liable to be destroyed by him he uses force against, as any savage ravenous beast, that is dangerous to his being.
§181. 虽然在所有的战争中，强制力和损害是混在一起的，当入侵者对他所宣战的人们使用强制力的时候，很少不损害他们的财产；然而只有强制力的使用才使一个人置身于战争状态：因为无论以强制力开始伤害，还是通过欺骗悄悄地伤害，他拒绝作出赔偿并通过强制力予以维持，（这与一开始就通过强制力进行伤害是一回事）挑动战争的正是对强制力的不正当使用：因为闯进我的屋子，以暴力将我赶出去；或和平的进入之后，以强制力使我呆在屋外，实际上是一回事；假设我们处于这样一种状态之中，我们在世上没有共同的审判者，我可以向他申诉，以及我们都服从于他：因为我们现在说的就是这种情况。是对强制力的不正当使用使一个人置身于对另一个人的战争状态之中；他因这种罪行而被剥夺了其生命权：因为离开理性——理性是人与人之间给定的规则，使用强制力——这是野兽的方式，他便可能被他使用强制力所侵犯的人毁灭，如同任何威胁他生存的凶猛的饥饿的野兽一样。

§182. But because the miscarriages of the father are no faults of the children, and they may be rational and peaceable, notwithstanding the brutishness and injustice of the father; the father, by his miscarriages and violence, can forfeit but his own life, but involves not his children in his guilt or destruction. His goods, which nature, that willeth the preservation of all mankind as much as is possible, hath made to belong to the children to keep them from perishing, do still continue to belong to his children: for supposing them not to have joined in the war, either thro' infancy, absence, or choice, they have done nothing to forfeit them: nor has the conqueror any right to take them away, by the bare title of having subdued him that by force attempted his destruction; though perhaps he may have some right to them, to repair the damages he has sustained by the war, and the defence of his own right; which how far it reaches to the possessions of the conquered, we shall see by and by. So that he that by conquest has a right over a man's person to destroy him if he pleases, has not thereby a right over his estate to possess and enjoy it: for it is the brutal force the aggressor has used, that gives his adversary a right to take away his life, and destroy him if he pleases, as a noxious creature; but it is damage sustained that alone gives him title to another man's goods: for though I may kill a thief that sets on me in the highway, yet I may not (which seems less) take away his money, and let him go: this would be robbery on my side. His force, and the state of war he put himself in, made him forfeit his life, but gave me no title to his goods. The right then of conquest extends only to the lives of those who joined in the war, not to their estates, but only in order to make reparation for the damages received, and the charges of the war, and that too with reservation of the right of the innocent wife and children.
§182. 但是因为父亲的错误并不是孩子们的过错，不管父亲如何粗野和不正义，孩子们也许是理性与和平的；父亲因为他的错误和暴行，只能剥夺他自己的生命权，他的罪行或毁灭并不能殃及他的孩子。父亲的财产，为了尽可能的保护所有的人类，按照自然的继承应当属于他的孩子们以使他们免于死亡，便应当继续属于他的孩子们：因为假定他们由于年幼，不在场或自行选择而未加入战争，那么他们便没有做过任何可丧失这些财产的事情：征服者也没有任何权利仅凭制服企图通过强制力毁灭他的人就可以剥夺它们；虽然可能他对这些财产拥有某些权利，以弥补他在战争中为捍卫自身的权利所遭受的损失；这在多大的程度上涉及被征服者的财产，我们最终会看到。所以，征服者通过征服拥有对一个人的人身的权利，可以随意毁灭他，却并不因此而对他的财产拥有权利以占有和享用它：因为给与对手一种可剥夺其生命的权利，并可随意作为一种有害的动物而加以毁灭的，正是入侵者已经使用的野蛮的强制力；而给与他对另一个人的财产拥有资格则是他所遭受的损失：因为虽然我可以杀死一个拦路抢劫的盗贼，然而我却不可以夺走他的金钱，然后放他走（这似乎很少见）：这变成了我去抢劫。他的强制力，以及他所置身于的战争状态，使他丧失了生命权，却并未因此给与我对他的财产有任何资格。于是，征服所获得的权利，仅仅限于参与战争的那些人的生命，并不延及他们的财产，只是为了补偿所遭受的损失和战争的花费才涉及被征服者的财产，在这种情况下无辜的妻子和孩子的权利也应当得到保留。